CLUSTER MUNITIONS (PROHIBITION) BILL 2006 [2008]

Contents

Part 1--Preliminary

Short title ............................................................................................ 1

Commencement................................................................................... 1

Purpose of Act.................................................................................... 2

Extra-territorial operation of Act ........................................................ 2

Act binds the Crown........................................................................... 2

Definitions .......................................................................................... 2

Application of the Criminal Code ...................................................... 3

Constitutional basis for the operation of this Act .............................. 3

Extended standing ............................................................................... 3

Part 2--Offences

Offences relating to cluster munitions ................................................ 4

Support for use of cluster munitions by another country .................. 4

ADF members deployed with foreign forces...................................... 4

Order to contravene Act ..................................................................... 4

Part 3--Defences

Clearing of cluster munitions .............................................................. 5

Education in relation to cluster munitions .......................................... 5

Decommissioning ................................................................................ 5

Part 4--Decommissioning

Minister to decommission munitions ................................................. 6

Report on stockpiles and decommissioning plan................................ 6

Cluster munitions which have been deployed .................................... 6

Cluster Munitions (Prohibition) Bill 2006 No. , 2006 1

A Bill for an Act to prohibit the use, possession and

manufacture of cluster munitions, and for related

purposes

The Parliament of Australia enacts:

Part 1--Preliminary

1 Short title

This Act may be cited as the Cluster Munitions (Prohibition) Act

2006.

2 Commencement

This Act commences on the day on which it receives the Royal

Assent.

3 Purpose of Act

(1) The purpose of this Act is to ensure that innocent civilians in

conflict zones are not maimed, killed or put at risk, as a result of

Australians possessing, using or manufacturing cluster munitions.

(2) In particular, this Act prevents members of the Australian Defence

Force, whether serving in Australia or outside Australia, and

whether serving with the Australian Defence Force or any other

defence force, from deploying cluster munitions.

4 Extra-territorial operation of Act

(1) This Act extends to acts done or omitted to be done by an

Australian citizen outside Australia and the external Territories or

to acts done on board Australian ships and aircraft.

(2) In subsection (1):

Australian ships and aircraft means ships and aircraft registered

in Australia or belonging to, or in the possession of, the

Commonwealth or a State.

5 Act binds the Crown

(1) This Act binds the Crown in all its capacities.

(2) Nothing in this Act renders the Crown liable to be prosecuted for

an offence.

6 Definitions

(1) In this Act, unless the contrary intention appears:

cluster munition means munition or device which is specifically

designed to cause death or harm by deploying one or more

submunitions.

container unit means that part of a cluster munition which is

intended to transport one or more submunitions from the point at

which the cluster munition is fired to the point at which the

submunitions are deployed.

member of the ADF means an officer, soldier, sailor or airman

under the Defence Act 1903.

submunition means a munition which is carried within the

container unit of a cluster munition, and which is deployed from

that container unit.

7 Application of the Criminal Code

Chapter 2 of the Criminal Code applies to all offences against this

Act.

8 Constitutional basis for the operation of this Act

This Act applies to matters within the legislative power of the

Commonwealth under paragraphs 51(vi) and 51(xxix) of the

Constitution.

9 Extended standing

(1) This section extends (and does not limit) the common law in

relation to standing to seek writs of mandamus, prohibition or

certiorari, or an injunction or declaration, under the Constitution or

the Judiciary Act 1903.

(2) An individual is taken to have standing to seek a writ of mandamus,

prohibition or certiorari, or an injunction or declaration, in relation to

this Act, if the individual is an Australian citizen and ordinarily

resident in Australia or an external Territory.

Part 2--Offences

10 Offences relating to cluster munitions

A person must not intentionally:

(a) develop, produce, otherwise acquire, stockpile or retain

cluster munitions, container units or submunitions; or

(b) transfer, directly or indirectly, cluster munitions, container

units or submunitions to another person; or

(d) engage in military preparations to use cluster munitions,

container units or submunitions.

Penalty: Imprisonment for life.

11 Support for use of cluster munitions by another country

A member of the ADF must not intentionally engage in military

preparations to assist a member of the defence force of another

country to use cluster munitions, container units or submunitions.

12 ADF members deployed with foreign forces

To avoid doubt, sections 10 and 11 of this Act continue to apply to

ADF members who are attached to the defence force of another

country.

13 Order to contravene Act

To avoid doubt, an instruction given to a member of the ADF which

would, if obeyed, contravene section 10 or 11 of this Act is not a

lawful command for the purposes of section 27 of the Defence

Force Discipline Act 1982.

Part 3--Defences

14 Clearing of cluster munitions

Part 2 of this Act does not apply in relation to conduct undertaken

with the intention of clearing or rendering safe submunitions which

have been deployed but which have not exploded.

15 Education in relation to cluster munitions

Part 2 of this Act does not apply in relation to conduct undertaken

in order to educate civilians regarding the dangers of approaching

or handling cluster munitions, container units or submunitions.

16 Decommissioning

Part 2 of this Act does not apply in relation to conduct undertaken

in order to decommission or destroy cluster munitions, container

units or submunitions in accordance with Part 4 of this Act.

Part 4--Decommissioning

17 Minister to decommission munitions

The Minister with responsibility for defence must cause all cluster

munitions, container units and submunitions in the possession or

control of the Australian Defence Force to be decommissioned or

safely destroyed within one year of the commencement of this Act.

18 Report on stockpiles and decommissioning plan

The Minister with responsibility for defence must cause to be

tabled in both Houses of the Parliament within three months after

the commencement of this Act a report which:

(a) identifies all stockpiles of cluster munitions, container units

and submunitions in the possession or control of the

Australian Defence Force, whether in Australia or overseas;

and

(b) sets out a plan for the decommissioning or safe destruction of

all such cluster munitions, container units and submunitions

within one year of the commencement of this Act.

19 Cluster munitions which have been deployed

If, as a result of an offence under this Act, a cluster munition is

deployed, whether in Australia or in another country, then that

munition must be cleared, removed or destroyed in accordance with

Australia's obligations under the Protocol on Explosive Remnants

of War to the Convention on Prohibitions or Restrictions on

the Use of Certain Conventional Weapons which may be

deemed to be Excessively Injurious or to have Indiscriminate

Effects.

Commonwealth of Australia Bills

CLUSTER MUNITIONS (PROHIBITION) BILL 2006 [2008]